1.1 HMD Global Oy, Bertel Jungin aukio 9, 02600 Espoo, Finland including its subsidiaries, suppliers, and successors (collectively “HMD Global”) provides HMD Connect Pro services (“Services”) based on the following General Terms and Conditions (”Terms”) to Customer as identified in the relevant Order Form and/or through access on the Management Hub (“Customer”).
1.2 When placing an Order Form (“Order”), the Customer must always state their VAT number, if applicable, and/or company registration number and details. Customer and HMD accepted Order Form (“Agreement”) becomes valid after HMD Global accepts the Order Form, which Customer has submitted to HMD Global. The orders issued to HMD Global are only accepted if confirmed by HMD Global in writing. Upon HMD Global’s acceptance of the Order Form, the Customer shall be enabled to use the Services as specified in the Order Form and Service Description. Any subsequent orders for SIM cards can be placed via the Management Hub by the persons to whom the Customer has granted admin rights in the Management Hub. The pricing valid at the time of placing ther order applies.
1.3 Changes. Unless otherwise agreed, any changes to this Agreement shall be communicated by HMD Global to Customer in advance in writing (by email) (“Changes”). Changes will be effective upon thirty (30) days’ written notice. In case Changes are not accepted, Customer is entitled to terminate the respective Order Form by providing fourteen (14) days’ written notice to HMD Global.
1.4 Subsequent Orders. Any subsequent orders are subject to these Terms. These Terms apply exclusively and no general terms of business/procurement of the Customer shall apply to the Services. Any agreements containing individual terms deviating from these Terms are not acceptable without HMD Global’s prior written consent. In case of any conflict between these Terms or the Order Form, the following order of precedence shall apply for clarification of the conflicting terms:
- Order Form as accepted by HMD Global
- Terms of Service for HMD Connect Pro
- Service Description (if provided by HMD Global)
2 Services provided by HMD Global
2.1 HMD Global is providing these Services to enterprise customers only. HMD Global reserves the right to adjust the scope of these Services at any time by giving prior written notice and to add functionality or, in rare cases, reduce or terminate functionalities. If an enhancement or a change materially reduces the core functionality of the Service, Customer shall be entitled to terminate this Agreement with 30 days written notice. HMD Global may, at its discretion, use subcontactors for providing the Services.
2.2 Once Order Form is accepted by HMD Global, HMD Global shall enable Customer to access the Services as specified in the Order Form. Possible other value added services and related details may be specified in Order Forms. The Services may include the allocation of SIM cards, the provision of mobile Services pertaining to the transmission of mobile data traffic and the use of the Management Hub for the monitoring and the administration of mobile services for M2M communication (“Management Hub”). The standard solution supports data and SMS services. The Services serve the implementation of mobile radio network- and IT based communication between distributed systems (such as smartphones, vehicles, machines, sensors, electricity meters, etc.) and central control stations (e.g. communication hubs) as well as remote-controlled operation of devices for purposes of i.e. monitoring, measurement, meter reading and control (referred to as "M2M Services") by the Customer. These include application scenarios in the field of device-to-machine, machine-to-device communication. The following is out-of-scope of the Services: applications (even if supported by a device) enabling humans to receive or make calls (voice or data). Also out-of-scope are packet data services which can be considered to be for personal use and selected by device users such as video streaming, online browsing etc.
2.3 The Management Hub enables the Customer to set up usage limits separately for each individual endpoints or all endpoints at once. HMD Global will not support or provide any additional services described as 'Bill Shock Prevention' or personalized Pricing Information SMS in accordance with EU Regulation 544 / 2009, unless this has been specifically agreed in writing with HMD Global.
2.4 The Customer agrees that this Agreement and any order of a Service is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public representations made by HMD Global regarding future functionality or features and HMD Global is not responsible for the failure of any future functionality or features that it provides or does not provide at its discretion.
2.5 Management Hub is accessible via commonly used internet browsers. In order to use the Management Hub, Customer needs an internet connection. Customer is solely responsible for its choice of such internet connections and any related fees and expenses. HMD Global has no obligations, responsibility or liability for the internet connection.
2.6 Customer acknowledges and agrees that connectivity services are provided on the basis of HMD Global’s agreements with mobile network operators (MNO), mobile virtual network operators (MVNO) or roaming partners (together “Network Infrastructure Provider”) and the type, scope and elements of such Network Infrastructure Provider’s services, including but not limited to the the available networks or roaming restrictions set forth by Network Infrastructure Provider may vary and change from time to time.
3 Term and Termination
3.1 Unless terminated earlier as provided for in this Agreement, the term of this Agreement will start on the effective date, which shall be deemed to be the date on which HMD Global accepts the Order, and will continue to be in force for a period of one (1) year (“Initial Term”). After the Initial Term, the Agreement will automatically renew and continue to be in force until terminated with two (2) months’ written notice to the other party.
3.2 Without prejudice to any other rights or remedies available to it, either party may terminate the Agreement with immediate effect upon notice in writing to the other party, if the other party: a) commits material breach of the Agreement and fails to remedy such breach within thirty (30) days of receipt of a written notice giving full particulars of such material breach requesting that it be remedied; or b) becomes subject to bankruptcy, composition, insolvency, administration, administrative receivership or other similar proceedings. Termination notices shall be given in writing, i.e. by letter, or email as defined in Agreement. Services are provided until the last day of a contractual term and the Customer is obliged to pay all fees charges incurred until that time. The provisions of the Terms that are intended to survive termination of the Services or this Agreement shall remain valid after termination.
4 Customer Obligations
4.1 General. Customer will adhere to any and all applicable laws when using such Services. Customer shall cooperate with HMD Global in providing the Services and shall provide all necessary information, including but not limited to name, address, email address (and is responsible for keeping such information up to date) to HMD Global. Email is considered to have arrived to Customer after HMD Global has sent the email to the email address HMD Global has on file.
4.2 Customer, by itself or otherwise, shall not, and shall ensure (where appropriate and so far as it is reasonably able) that any Third Party Users shall not:
a) use the Service fraudulently or in connection with a criminal offence or to send messages or communications which are offensive, abusive, menacing, obscene, incite hatred, panic or anxiety, or which are otherwise unlawful;
b) use a Service to access, transmit, publish, display, advertise or make available material which infringes copyright or any other Intellectual Property Right held in any country, is obscene or pornographic, contains threats of any kind, is defamatory in any way or breaches confidence, which is illegal or infringes any third party's legal rights of whatever nature under the laws of any jurisdiction for any reason;
c) use the Service for any purpose which may result in the illegal access to or collection of data whilst in transit, illegal access to computers or networks, spamming, flooding or other such broadcasts together with any other activity which may adversely affect HMD Global or any third party; or
d) use the Service in any hazardous environments requiring fail-safe performance, such as, but not limited to, aircraft navigation or communication systems, air traffic control, in the operation of nuclear facilities, direct life support machines, or defense systems, in which the failure of products could lead directly to death, personal injury, or severe physical or environmental damage. Customer shall inform HMD Global without undue delay if Customer intends to use the Services in an environment as described above and HMD Global may (i) provide Customer with a quotation for Services in such an environment or (ii) reject such request and terminate the Agreement.
4.3 Customer may not transfer, lend, lease or otherwise transfer the subscription or SIM card to others except as expressly set forth herein or agreed in writing between the parties. Customer is responsible for the unauthorized use of the SIM card, PIN, PUK, user-ID and access-passwords in accordance with the rules and restrictions set forth by HMD Global or any applicable laws. Any abuse or breach of the rules and restrictions set forth by HMD Global or any applicable laws is the Customer’s responsibility and Customer will indemnify and hold harmless HMD Global from and against any and all third party claims that arise out of such abuse or breach defined above.
4.4 In regards to the allocation and use of the SIM card(s), the following applies: Customer shall only use technically suitable devices for the operation of the SIM Card. In particular, the Customer shall not use, or permit any Third Party User to use any device which is not compliant with GSMA or 3GPP specifications, to access or use the Service. In addition, the Customer acknowledges that in certain territories, operators might require device certification and access to Service might not be available for devices that are not certified according to operator’s requirements. The Customer shall inform HMD Global of any abuse by giving full particulars of the impacted SIM card(s) immediately after obtaining knowledge thereof. However, in the event of loss or any form of loss of control over the SIM card, the Customer remains obliged to pay the respective fees, arising from use of the SIM card by third parties until suspension of the SIM card by the Customer using the Management Hub or by explicitly requesting such suspension from HMD Global in writing or by email. Customer may make the SIM card available to a third party (“Third Party User”) in accordance with the Agreement, however the Customer shall remain the contractual party of HMD Global and remain jointly and severally liable for all acts and omissions of such Third Party User, especially and without limitation, to make payments of fees arising from use of the Services. Customer will not have the option to purchase other services through the SIM cards, such as premium rated SMS services.
4.5 In regards to the provision of Telecommunications Services (M2M Services), the following regulations apply: The availability of network connectivity in certain countries and regions will be confirmed and updated when necessary separately by HMD Global in writing. The use of services that go beyond the provision of M2M Services requires approval by HMD Global and must be agreed in writing.
5.1 Without prejudice to its other rights under this Agreement, HMD Global is entitled to suspend wholly or partly the use of its Services (in the following 'Suspension') in the following cases:
- The Customer defaults or is late on any payments.
- HMD Global monitors a substantial increase in volumes and use of the Service, and consequently the Customer’s liability towards HMD Global, justifying in HMD Global’s reasonable opinion the assumption that the Customer will not pay the fees due.
- Any threat to the technical facilities and/or network of HMD Global, or one or more of its Network Infrastructure Providers is, with high probability and/or in HMD Global’s reasonable opinion, caused by the Customer’s use of the Service.
- If the Customer causes anything, which in HMD Global’s reasonable opinion may have the effect of jeopardizing the operation of the Services or uses the Service in violation of this Agreement.
- HMD Global obtains information that the SIM card usage is in violation of any applicable law.
- If the Customer fails to provide HMD Global with a valid business address and email address and any other essential information reasonably requested by HMD Global in accordance with the Agreement.
- If the Customer, despite a written notice provided in accordance with this Agreement, continues to breach the terms and conditions of this Agreement.
5.2 In case of Suspension, the Customer is responsible for any charges that accrue through the date that HMD Global fully processes the Suspension. To the extent permitted by applicable law, Customer shall reimburse HMD Global for any reasonable costs incurred, including attorneys' fees, to collect fees owed by Customer to HMD Global. If the Customer has failed to pay any fees due, HMD Global may require that the Customer pays a deposit and/or a fee to restore the Service(s).
6 Prices and Invoicing
6.1 Any fees charged by HMD Global will be announced separately in connection with the relevant Service and agreed in the Order Form. The fees charged by HMD Global may include taxes (such as value added tax, goods and services tax, or sales tax), if applicable and in effect at the moment of the transaction under the relevant tax laws. All given prices are net of freight, packaging and ancillary costs, such as customs and import duties, where applicable. Customer will pay HMD Global for the fees that are reflected in connection with the relevant Service. The parties will agree in the Agreement whether Services are paid in advance or after the Service has been provided.
6.2 Customer acknowledges and agrees that due to the nature of the Services, HMD Global may unilaterally amend the fees at any time with thirty (30) days prior written notice (by email) to the Customer. In case fee changes are not accepted, Customer is entitled to terminate the respective Order Form by providing fourteen (14) days’ written notice to HMD Global.
6.3 HMD Global may provide Customer with an initial credit limit amount ("Credit Limit”) and will notify Customer of this in writing. HMD Global may, at its reasonable discretion, change the applicable Credit Limit by giving the Customer prior written notice. HMD Global may suspend the Services without prior written notice to the Customer if the Credit Limit is exhausted, meaning that the sum of (i) the total invoiced amounts, which remain unpaid, and (ii) the unbilled but accrued usage fees of the Services, has exceeded the then current Credit Limit.
6.4 HMD Global will send invoices to the Customer by email in PDF format, for which Customer shall entertain a valid reader license and be liable for all bills sent to their current email address on file. The Customer will also receive access to itemized usage statements via the Management Hub.
6.5 Payment occurs when received in HMD Global’s bank account. The late payment interest is the higher of (i) eleven (11) percent per annum (subject to restrictions set by applicable mandatory law) or (ii) the highest rate defined in the applicable law.
7 Specific Terms related to SIM Cards
7.1 The starting date of the subscription for each SIM card is defined by the Customer’s activation of the SIM card through management tools such as the Management Hub. The SIM cards can be suspended and activated by Customer at any time via the Management Hub. In case a SIM card is suspended by the Customer during the billing month, SIM card specific invoicing is suspended from the day after the suspension request, until the day when the customer activates the SIM card in their Management Hub again. For activation, the Customer will receive a confirmation via the Management Hub. Reactivation fees, as agreed in the Order Form, may apply.
7.2 Unless otherwise agreed in writing between the parties, HMD Global provides the SIM cards required for the use of Services. HMD Global strives to meet the delivery dates we have communicated for the provision of SIM cards. However, HMD Global assume no liability for any delay or deviation from the communicated delivery dates. In case of any delay, the Customer grants HMD Global a grace period of at least three (3) weeks to remedy the delay. The Customer may terminate the relevant Order Form after expiry of such grace period by providing written notice by email to HMD Global. Damages for non-fulfilment are excluded also after expiry of the grace period. Partial deliveries are allowed.
7.3 The SIM cards delivered by HMD Global to Customer may deviate from the ordered SIM cards as long as the deviations are of technical nature and the changes do not represent a significant deviation from the functionalities specified in the Agreement or applicable documents and/or do not represent a significant deviation from the usability. In the case where replacement products are technically more advanced than the SIM cards specified in the Agreement, HMD Global is entitled to adjust the price upon its reasonable discretion. Such price increase shall be communicated to the Customer in advance, in writing. The Customer may terminate the relevant Order Form within seven (7) days in writing after the receipt of such notice from HMD Global. If the Customer does not exercise such termination right, the new price is deemed to be accepted by the Customer. HMD Global excludes any claims for damages due to non-performance, if Customer makes use of their right to cancel any Order Form.
7.4 The delivery time shall be extended, also in the case of Force Majeure which occurs after the completion of the Agreement and its acceptance by HMD Global. The Force Majeure clause applies also to HMD Global’s suppliers and their sub-suppliers. HMD Global will promptly communicate the beginning and end of such extension of the delivery time to the Customer without undue delay. In the case that HMD Global does not provide a delivery date within reasonable time, the Customer may cancel the respective Order Form. In such case, the Customer remains obliged to pay for any Services already rendered by HMD Global. All further claims and entitlements of the Customer are excluded.
8.1 If the Customer has requested that HMD Global delivers the SIM cards, the risk of accidental loss or deterioration of the SIM card passes to the Customer at the moment of the dispatch of the SIM card to the Customer, but no later than the SIM cards leaving the premises of HMD Global or its external service provider.
9 Acceptance of SIM Cards
9.1 The Customer must check the SIM cards upon their delivery. Any complaints or objections regarding quantity or type of SIM cards, as well as regarding externally visible defects are only considered if they are sent to HMD Global in writing within ten (10) days of receipt of the SIM cards by Customer. Customer must notify HMD Global immediately in writing of any other defects, at the latest within seven (7) days after such defects are detected. Failure to comply with such time lines may lead to the exclusion of such claims and will be deemed acceptance of the condition of the SIM card(s).
9.2 Customer is not entitled to claim any defects if such defects only represent an insignificant deviation from the functionalities or an insignificant impairment of the usability. The sole and exclusive remedy dor defects of any kind with the SIM cards will be repair or or replacement of the SIM cards. HMD Global will at its sole discretion choose the remedy.
10 Intellectual Property
10.1 The Service, any content and software are protected under international copyright laws. HMD Global Oy claims copyrights in its Service, content, and software to the maximum extent of the law. Subject to the Terms, HMD Global Oy retains all right, title and interest in the Service, its content, the software and in all other HMD Global Oy products, software and other properties provided to Customer or used by Customer through the Service. All corporate names, service marks, logos, trade names, trademarks, websites and domain names of HMD Global Oy, including but not limited to “Nokia” (collectively “Marks”) are and shall remain the exclusive property of HMD Global Oy or its licensors and nothing in these Terms shall grant the Customer any license to use any Marks without HMD Global’s prior written permission.
11 Data protection
11.1 The Customer agrees that the provisions of (i) EU Directive 2002/58/EC on Privacy and Electronic Communications; (ii) Regulation (EU) 2016/679 (the “GDPR”) on the protection of natural persons with regard to the processing of personal data; and (iii) all local laws or regulations implementing or supplementing the EU legislation mentioned in (i)-(ii) above and any subsequent amendments thereof (“Data Protection Laws”) and relevant international, regional and national data protection and privacy legislation shall apply to the transfer and processing of personal data hereunder and agrees to comply with such legislation.
11.2 The section 11 of these Terms shall apply in cases where HMD Global is processing personal data on behalf of the Customer. For the purposes of these Terms the following definitions shall have the following meanings: “Customer Personal Data” shall mean the Personal Data (i) supplied to HMD Global by or on behalf of the Customer and/or (ii) obtained by or created by HMD Global on behalf of the Customer in the course of delivery of the Services, and which in each case is processed by HMD Global in connection with Services; “Controller”, “Data Subject”, “Processing”, “Processor”, “Personal Data” and “Personal Data Breach” shall have the same meaning as defined in the GDPR. HMD Global processes information both as a data controller and as a telecommunications operator to provide the communications services.
11.3 HMD Global (and its subcontractors) may be required to access, receive, store or otherwise process Customer Personal Data in order to provide the Services under these Terms for the duration of the Agreement.
11.4 The following shall apply to (i) the appointment of HMD Global as the Processor by the Customer and to (ii) the appointment of sub-processors by HMD Global:
(a) Where the Services comprise Processing of Customer Personal Data by HMD Global, HMD Global shall be the Processor and the Customer shall be the Controller with respect to such Customer Personal Data. Each Party shall comply with the applicable Data Protection Laws with regard to such processing in connection with the Services;
(b) If a party considers that the relationship between them no longer corresponds to the intention of the parties stated in Clause 11.4(a) above then it shall notify the same to the other party. The parties shall negotiate in good faith to amend the Agreement to give it the meaning reflecting such changed circumstances; and
(c) Notwithstanding any other provision of these Terms, HMD Global shall be entitled to engage sub-processor in relation to any part of Services requiring the Processing of Customer Personal Data. HMD Global shall (i) impose the same data protection obligations as set out in these Terms on such sub-processor; and (ii) remain fully liable to the Customer for the performance of the sub-processor's obligations.
11.5 HMD Global processes the following information on behalf of the Customer:
SIM card identifiers (GUID, IMSI, ICC)
Cell Tower ID
Used mobile networks (local MNO)
Data usage country
11.6 HMD Global’s obligations:
(a) HMD Global shall (i) process Customer Personal Data in compliance with the GDPR and good data processing practices, (ii) follow the instructions by the Customer regarding the processing of Personal Data, unless prescribed otherwise by the provision of the Data Protection Law to which the HMD Global is subject to, and (iii) not process Customer Personal Data for any other purposes than the sole purpose of providing the Services to the Customer under these Terms unless otherwise required by applicable law or regulation.
(b) HMD Global shall ensure that any persons authorised by it to process the Customer Personal Data are subject to confidentiality obligations.
(c) HMD Global shall adopt, maintain and enforce appropriate security policies as well as data protection and safeguarding arrangements for the lawful protection of Personal Data, communications and systems (including appropriate technical and organisational measures as required in Article 32 of the GDPR).
(d) HMD Global shall notify the Customer immediately after becoming aware of any Personal Data Breach as well as provide the required information to the Customer.
(e) Taking into account the nature of the processing, HMD Global will assist the Customer by appropriate technical and organisational measures with responding to the Data Subjects' requests under the GDPR.
(f) Taking into account the nature of the processing and the information available to HMD Global, HMD Global shall assist the Customer with regard to its obligations under the following Articles of the GDPR: (i) Article 32 (Security of processing); (ii) Articles 33 and 34 (Notification and communication of a personal data breach); (iii) Article 35 (Data protection impact assessment); and (iv) Article 36 (Prior consultation with the supervisory authority).
(g) Upon termination of Services that required the processing of Customer Personal Data (in whole or in part) HMD Global shall, as requested by the Customer, return or destroy such Customer Personal Data which is in the possession of or under the control of HMD Global, unless the Data Protection Laws require HMD Global to store such Customer Personal Data.
(h) HMD Global shall, and at the request of the Customer, provide the Customer with all information necessary to demonstrate its compliance with its obligations under this Clause 11.6 and shall allow and contribute to audits and inspections conducted by or on behalf of the Customer.
(i) Where required to do so by the GDPR, HMD Global shall maintain written records of its processing of Customer Personal Data and make them available to a supervisory authority on a request.
11.7 HMD Global is entitled to charge the Customer for costs and expenses that were incurred as a result of complying with the above clause 11.6 (e), (f) and (h).
11.8 The Customer’s obligations:
(a) the Customer shall ensure that: (i) the supply to HMD Global of Customer Personal Data by or on behalf of the Customer for the purposes of processing undertaken in compliance with these Terms by HMD Global and its sub-processors shall comply with the Data Protection Laws; and (ii) the instructions given by the Customer to HMD Global for processing Customer Personal Data shall comply with the Data Protection Laws.
(b) The Customer is responsible for filing any necessary registrations in relevant countries, where applicable, in accordance with applicable data protection and privacy laws.
11.9 In the event that the exchange and processing of the Customer Personal Data requires further written specification of the rights and obligations of the Parties, the Parties shall enter into separate Data Processing Agreement.
11.10 HMD Global may process Personal Data for the advertising, marketing and research purposes but only when the individuals have given their explicit consent in this respect.
12.1 Subject to the conditions and exceptions stated below, HMD Global: (a) shall defend Customer against any claim, action or proceeding brought against Customer alleging an infringement or misappropriation of any patent, copyright, trade secret or other intellectual property right of any third party because of Customer’s receipt or use, consistent with HMD Global’s specifications, of the Services (a “Claim”) provided to Customer under this Agreement; and (b) shall indemnify Customer against, and hold Customer harmless from, any and all costs and damages assessed against Customer in a final court or arbitrational judgment on such Claim, if: (i) Customer gives HMD Global prompt written notice of the Claim, (ii) Customer grants to HMD Global the sole authority to assume the defense, and the sole right to settle the Claim, through counsel chosen by HMD Global, and (iii) Customer furnishes all information and assistance reasonably requested by HMD Global and reasonably cooperates with HMD Global to facilitate the defense and settlement of the Claim.
12.2 If Customer's use of the Services is enjoined as a result of any Claim, is subject to a Claim, or in HMD Global’s opinion is likely to be enjoined or to be subject to a Claim, then, at its sole expense, HMD Global may: (a) procure for Customer the right to continue to receive and use the Services; or (b) replace or modify the Services with a functionally-equivalent or better Service so that Customer’s use is not subject to a Claim. If HMD Global determines that it cannot accomplish either of the foregoing in a commercially reasonable manner, then, upon HMD Global’s request Customer may terminate the Services with HMD Global, provided that HMD Global fully credits to Customer any fees, including the price of any Services paid by Customer to HMD Global for Services not yet performed.
12.3 HMD Global has no obligations under this Clause 12 with respect to a Claim to the extent that it: (a) arises from adherence to design modifications, specifications, drawings or written instructions which Customer directs HMD Global to follow, (b) relates to uses of any Services in combination with any item not provided directly by HMD Global, if use of the Services alone would not have resulted in such infringement, (c) relates to the use of any Services in a manner not contemplated by this Agreement, (d) relates to a modification of any Services by any person other than HMD Global or (e) relates to third party software included in the delivery of the Services, the use of which is governed by a copyleft license or an additional license.
12.4 Customer will, at its cost and expense, defend and indemnify HMD Global and its affiliates from and against all third party claims and all liabilities, assessments, losses, costs or damages resulting from or arising out of (i) Customer’s breach of the Agreement, (ii) Customer’s infringement or violation of any intellectual property rights, other rights or privacy of a third party, or (iii) misuse of the Service by a third party where the misuse was made possible by the Customer’s failure to take reasonable measures to protect its username and password against misuse; or (iv) Customer’s use of the Services and Management Hub.
13.1 HMD Global represents and warrants that its Services will operate materially in accordance to the relevant specifications (such as Service Description) that HMD publishes in connection therewith and that all Services it directly provides will be provided in a competent manner according to commercially reasonable industry standards.
13.2 OTHER THAN AS EXPRESSLY SET OUT HEREIN, HMD DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR OR VIRUS-FREE OR MEET YOUR REQUIREMENTS. NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE IN RELATION TO THE AVAILABILITY, ACCURACY, RELIABILITY, INFORMATION OR CONTENT OF THE SERVICE. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT BECAUSE SOME OF THE SERVICES MAY BE PROVIDED OVER MOBILE AND INTERNET NETWORKS OUTSIDE OF HMD GLOBAL’S CONTROL, THEY ARE SUBJECT TO OUTAGES, DISRUPTIONS, AND INTERCEPTION, AND THAT HMD GLOBAL HAS NO LIABILITY FOR ANY SUCH OUTAGES, DISRUPTIONS OR INTERCEPTIONS. HMD GLOBAL CANNOT MAKE ANY REPRESENTATIONS OR GUARANTEES WITH REGARD TO AVAILABILITY, QUALITY, OPERATION OR SUPPORT FOR DATA COMMUNICATION ON ANY THIRD PARTY NETWORKS. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT YOU MAY BE EXPOSED TO CONTENT FROM VARIOUS SOURCES WHICH HMD GLOBAL IS NOT RESPONSIBLE FOR. IN ADDITION, UNDER NO CIRCUMSTANCES WILL HMD GLOBAL BE LIABLE FOR DAMAGES ARISING OUT OF OR RELATED IN ANY WAY TO YOUR INABILITY TO ACCESS, OR YOUR DIFFICULTY IN ACCESSING, THE SERVICES TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14 Limitation of Liability
14.1 In no event, will either Party be liable to the other Party for any indirect, incidental, punitive or consequential damages (including but not limited to, any loss of data or records, loss of profits, loss of sales, loss of turnover, loss of or damage to business, loss of or damage to reputation, loss of contracts, loss of customers or losses or liabilities under or in relation to any other contract) regardless of whether such damage was foreseeable and whether or not such party has been advised of the possibility of such damages.
14.2 Except where prohibited by law, in no event will HMD Global’s liability arising out of or in connection with this Agreement, exceed the amount of HMD Global’s charges to you for your actual use of the services during the prior one (1) month period immediately preceding the liability event.
14.3 The exclusions and limitations of liability set forth above shall not apply to a Party’s indemnity obligations or in cases of intentional misconduct or gross negligence.
15 Governing Law and Dispute Settlement
15.1 Unless otherwise agreed in writing between the parties, this Agreement shall be governed by the laws of Finland. The application of uniform sales law, in particular the application of the Convention of the United Nations on Contracts for the International Sale of Goods (CISG) is expressly excluded. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finnish Central Chamber of Commerce in Helsinki, Finland, in English. The award shall be final and binding on the parties. Any dispute, controversy or claim arising out of or relating to this Agreement and the final award shall be deemed confidential information under this Agreement. Nothing in this Agreement shall limit the parties' rights to seek interim injunctive relief or to enforce an arbitration award in any court of law.
16 Other Provisions
16.1 Force Majeure: HMD Global is not liable to Customer for any delay, failure to perform, loss or damage due to causes beyond HMD Global’s reasonable control, including but not limited to acts of God, fire, strikes, explosions, power failure, earthquake, flood, water, labor disputes, war, national emergency, terrorism, acts or omissions of carriers or suppliers, systems failure, cyberattacks and acts of regulatory or governmental agencies.
16.2 Assignment: Neither Party may assign this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld; provided, however that HMD Global may assign its rights and obligations under these Terms to its corporate parent, any of its subsidiaries, or to any company under common control with HMD Global. Additionally, HMD Global may assign its rights and obligations under these Terms to a third party in connection with a merger, acquisition, sale of assets, by operation of law or otherwise.
16.3 Severability: These Terms shall not exclude nor limit any mandatory rights of the Customer that cannot by law be waived. If a provision of these Terms is found to be invalid, the remaining provisions will not be affected and the invalid provision will be replaced with a valid provision that comes closest to the result and purpose of the Terms. In the event one or more provisions of these Terms are not relevant to Customer’s use of the Service, it shall not impact the validity or enforceability of any other provision of the Terms or the Terms as a whole.
16.4 Feedback: By submitting any ideas, feedback and/or proposals ("Feedback") to HMD Global through the Service or other means, Customer acknowledges and agrees that: (1) HMD Global may have similar development ideas to the Feedback; (2) Feedback does not contain confidential or proprietary information of Customer or any third party; (3) HMD Global is not under any obligation of confidentiality with respect to the Feedback; (4) HMD Global may freely use, distribute, exploit and further develop and modify Feedback for any purpose; and (5) Customer is not entitled to any compensation of any kind from HMD Global.
16.5 Confidentiality: The parties undertake to treat the contents of the agreements existing between the parties, as well as all confidential information related to this, as confidential. Both parties may make use of confidential information only for purposes of this agreement. Neither party may publish any confidential information without the prior consent of the other party, or pass it on to third parties. Information is considered confidential, if the party that has produced the information has marked it confidential or if the confidentiality of certain information derives from the circumstances. In case of doubt, all information is confidential. Information that was already known to the parties at the time of the receipt of the information, or made known by a third party without the obligation to keep confidential, or which were already publicly known at the time of the transfer or later without breach of this confidentiality agreement became known are not considered confidentia. The foregoing confidentiality obligations apply to the termination of this contract, and for a period of three (3) years after its termination.
16.6 Claims by Customer: Customer shall notify HMD Global of any possible claim it may have against HMD Global based on this Agreement within a reasonable time, however no later than in three (3) months after Customer became aware of an event that may give reason for such claim.
15.7 Notice. HMD Global shall send notices using Customer’s contact information provided in an Order form. Customer shall use HMD Global’s contact information provided in an Order form.
15.8 Prohibited Use: Customer may not use or attempt to use the Service in connection with any use which is prohibited by any applicable export control and economic sanction regulations, including those of the US, UK, and EU. In addition, Customer shall not export, re-export or import the SIM cards against any applicable import and export control and economic sanction regulations. Customer shall immediately notify HMD Global in writing upon becoming aware of or suspecting such activity in the course of the services offered by Customer. In the event that HMD Global reasonably believes that this clause may have been breached, Customer will cooperate fully with any investigation to resolve the concern and/or HMD Global reserves the right to suspend its Services during the investigation at its reasonable discretion without any penalty or liability to Customer.
Version 1.5, 7 March 2022